R v Moarefi
[2021] ACTSC 192
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Moarefi |
Citation: | [2021] ACTSC 192 |
Hearing Date: | 12 August 2021 |
DecisionDate: | 13 August 2021 |
Before: | Burns J |
Decision: | See [20]–[22] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Pre-Trial Application – application for separate trial – where applicant accomplice of principal offender – whether applicant would be prejudiced in his defence by continuing joinder of charges – where significant evidence to be led at trial only admissible against co-accused and not applicant – where change in circumstances since previous application to order separate trials was refused –whether it is a sufficient ground to order separate trials where there is a significant imbalance in the cogency of the Crown case with regard to the two co-accused |
Legislation Cited: | Crimes Act 1900 (ACT) s 264(2) |
Cases Cited: | Ross v The Queen [2012] NSWCCA 207 |
Parties: | The Queen ( Crown) Benjamin Moarefi ( Applicant) |
Representation: | Counsel M Dyason ( Crown) A Haban-Beer and F Livingstone Clark ( Applicant) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Boxall Legal ( Applicant) | |
File Number: | SCC 215 of 2019 |
BURNS J:
In this matter there is an application by the accused person, Benjamin Moarefi, for an order that he be granted a separate trial to his co-accused, Christopher Cunningham, in respect of Counts 3 and 4 on the indictment which is dated 21 February 2020.
It is alleged that Mr Cunningham discharged a firearm in a suburban area in the ACT on a particular date and in doing so wounded another person. It is alleged, subsequently, that a search of his premises located a firearm.
The accused, Benjamin Moarefi, is alleged to have been an accomplice of the principal offender, Mr Cunningham, in that it is alleged by the Crown that Mr Moarefi provided a gun to Mr Cunningham and also assisted him in other ways in relation to the offences with which Mr Cunningham is charged.
The order sought by the accused person, Mr Moarefi, is sought on the basis that he would be prejudiced in his defence by the continuing joinder of his charges with those of Mr Cunningham.
The present application is made pursuant to s 264(2) of the Crimes Act 1900 (ACT) (the Crimes Act) which relevantly provides that if this court is of the opinion that:
[a] person accused may be prejudiced or embarrassed in his or her defence because of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person be tried separately for one or more offences in an indictment, the court may order a separate trial of a count or counts on the indictment.
It is quite clear that there is evidence which is admissible against Mr Cunningham but which is not admissible against Mr Moarefi. Some of that relates to what might be referred to as relationship or contextual evidence which, in effect, sets out the background to the incident in which it is alleged that Mr Cunningham discharged the firearm. That evidence involves allegations of drug debts being owed by various people and it is quite clear that that evidence is admissible only against Mr Cunningham and not against Mr Moarefi.
Further, there is evidence which the Crown would propose leading which the Crown submits constitutes admissions made by the accused, Mr Cunningham, to participation in the shooting of the victim. That evidence is also only admissible against Mr Cunningham.
In addition, there will be evidence led by the Crown of the finding of a firearm in Mr Cunningham's residence at a date after the alleged offence involving the shooting of the victim. That evidence is also admissible only against Mr Cunningham.
History of the matter
The present matter has a sorry history. There was an attempt to have the matter listed for trial some time ago, but it was not reached as a result of COVID-19 restrictions. This was in March 2020. Subsequently the trial commenced before myself and a jury on
14 September 2020. Some days into the trial the trial was aborted because of a
non-responsive answer made by a Crown witness, in essence, accusing
Mr Cunningham of a serious criminal offence with which he had not been charged.
The matter then commenced again before myself and a jury on 5 July 2021. At that time the Crown proposed to lead further evidence which it submitted would constitute admissions made by Mr Cunningham but also evidence which it submitted could be used by a jury to establish that Mr Cunningham had a consciousness of guilt with regard to the charges against him. This trial was also aborted due to reasons which I have covered in R v Cunningham; R v Moarefi (No 5) [2021] ACTSC 195.
I might say that in the trials that took place in September 2020 and July 2021 there was, as at the point when each of the trials was aborted, virtually no evidence connecting Mr Moarefi to the alleged offending by Mr Cunningham.
An earlier application to order that the accused be tried separately was refused in this Court. There has been a change in circumstances since that time in that some of the evidence, in relation to admissions to which I have referred which is to be led by the Crown, is now a matter which is known to the parties, in addition to which, the evidence on which the Crown will rely to establish a consciousness of guilt on the part of
Mr Cunningham is also known to the parties.
There is a third matter to which I will refer and that is that the stark imbalance in the Crown cases between that against the accused, Mr Moarefi, and the accused,
Mr Cunningham, is now very clear. The Crown anticipates that it will call evidence at any future trial of Mr Moarefi to establish that on the date of the alleged offences a number of telephone conversations occurred between a telephone number associated with Mr Moarefi and a telephone number associated with Mr Cunningham. The Crown will not be relying upon any evidence that establishes the suggested whereabouts of Mr Moarefi or, at least, the phone bearing that phone number at the time that those calls were made so that the high point of that evidence is to establish, making all possible inferences available to the Crown, that Mr Moarefi and Mr Cunningham had engaged in a number of conversations on the date in question.
For my part I do not see how that significantly advances the Crown case with regard to Mr Moarefi. I would anticipate that if that is the only evidence which the Crown has to lead with regard to Mr Moarefi, which is different to the evidence which was given in the first two aborted trials, and if the evidence from the Crown witnesses turns out, as it has, on any third trial in the same form as it was at the earlier two trials, I would anticipate that an application for a directed acquittal would be made and I would think that there would be very strong grounds for that to occur.
In any event, the reality of the present application is that the question is whether it is a sufficient ground to order separate trials in the present case where there is such a significant imbalance in the cogency of the Crown case with regard to the two
co-accused.
Consideration
It should not be forgotten that in the ordinary course one would expect alleged
co-offenders to be tried together. There are a number of obvious policy reasons why that should be the case, however, as I have already indicated, the provisions of the Crimes Act do allow for this Court to order separate trials if there is an appropriate reason to do so.
In Ross v The Queen [2012] NSWCCA 207 the Court referred at [25], with approval, to comments made by Hunt J in R v Middis, which was an unreported decision of the Supreme Court of New South Wales dated 27 March 1991 in which his Honour said that:
1. Where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him; and
2. Where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and
3. Where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material,
a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial.
I have no doubt that the evidence against the accused, Mr Moarefi, is significantly weaker and is different to that admissible against Mr Cunningham. I am not satisfied, however, that the evidence against Mr Cunningham contains material highly prejudicial to Mr Moarefi, although not admissible against Mr Moarefi.
It is true that in any trial in which evidence which is given which is admissible only against one accused and not against another accused involves a possibility of prejudice to the accused person against whom the evidence is not admissible. However, it is generally accepted that any such potential prejudice can be met by appropriate directions to the jury. There is no reason to believe that jurors in this particular trial would not understand and apply any appropriate directions that were given to them.
I am also not satisfied that there is a real risk that the weaker prosecution case against the applicant, Mr Moarefi, will be made stronger by reason of the prejudicial material contained in the prosecution case against Mr Cunningham. In my opinion, as a question of the proper application of legal principle to the factual circumstances of the present case, the application for separate trials should be refused. I have already given some indication as to my views about the strength of the prosecution case against Mr Moarefi, but, ultimately, that has to be a decision made by the Director of Public Prosecutions.
For that reason, I refuse the application to order separate trials.
I order that the application be dismissed entirely.
| I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
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